(Previous episodes here).
Thus, for instance, the compatibility, under
the second prong of the three-step test, of the commercial availability of
accessible format copies with the enjoyment of limitations and exceptions for
the print disabled has not been questioned in US copyright law, where the so called “Chafee
Amendment” does not require authorized entities to check for the commercial availability
of accessible format copies prior to making copies.
Nevertheless, countries are in principle free to enact limitations and exceptions in their national copyright legislation
that are located well below the “upper” limit indicated by the test. The 2006
Sullivan Study noted in this respect that
exceptions for the benefit of the visually impaired in some national copyright laws included a requirement that the work to be used had not been
published already “in a special format” or “in an accessible format."
When national legislators insist on the absence
of commercial availability, there is often the recognition that the mere presence of market offerings does not normally
suffice to facilitate access to works by disabled persons, though. Thus, for instance,
the recently amended Canadian Copyright Act states that the exemption under Section
32 for the benefit of “persons with perceptual disabilities” does not apply
where the work in a format specially designed to meet the needs of any person
with a perceptual disability is commercially available,
by that meaning “available on the Canadian market within a reasonable time and for a reasonable
price and may be located with reasonable
effort” (emphasis added). Also the UK proposed exception for the benefit of disabled persons,
currently under review, would apply only if accessible format copies “are not
commercially available on reasonable
terms with the authority of the copyright owner” (emphasis added).
The Marrakesh Treaty does not
contain any mandatory reference to “commercial availability”. Under Art. 4 of
the Treaty, devoted to “National Law Limitations and Exceptions Regarding
Accessible Format Copies,” paragraph 4 merely states that “a contracting Party may
confine limitations or exceptions under this Article to works which, in the
particular accessible format, cannot be obtained commercially under reasonable terms
for beneficiary persons in that market”
Moreover, an Agreed statement confirms that the commercial availability
requirement under Art.4(4) does not prejudge whether or not a limitation or
exception under Article 4 is consistent with the three-step test.
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This post concludes Waves' first Feuilleton estival Coming "soon" a paper loosely based on these posts (working title: "Marrakesh Treaty for the Print Disabled: Limitations and Exceptions in Transition)."
